What’s Going on with Administrative Law?

As a librarian who works and lives in the state of North Carolina, I pay employment taxes to both the Internal Revenue Service and the North Carolina Department of Revenue. My office building has elevators inspected annually by the North Carolina Department of Labor.

For dinner, I enjoy fajitas made with steak okayed by the US Food and Drug Administration, then take a Prilosec that carries the same approval. I mail Christmas and birthday cards using the United States Postal Service.

On vacation, I might go to a park managed by the North Carolina Wildlife Resources Commission or fly in an airplane regulated by the Federal Aviation Administration. Finally, after a long day, I drift to sleep on a mattress bearing a tag required by the Consumer Product Safety Commission.

The activities in this narrative have one thing in common: Each involves an administrative agency. What are administrative agencies?

They are organizations created by statute and charged with regulating an area of society. This is laid out in the Administrative Procedure Act, which became law in 1946. Federal agencies may report to the president, and state agencies to the governor. Or they can be independent, overseen by a board of directors or commissioners.

Many agencies are familiar to us:

• IRS
• FBI
• Department of Transportation
• Environmental Protection Agency
• Securities and Exchange Commission

Others, like the Pension Benefit Guaranty Corporation or the Inter-American Foundation, are not household names.

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What do administrative agencies do? Three main things:

Rulemaking

Just as there is a process for state legislatures and the US Congress to pass statutes, administrative agencies create rules, also called regulations.

Statutes are high level: They say what a legislature wants done. A good statute also contains policy analysis—the why of lawmaking.

Regulations explain how things get done. They are full of details that statutes omit. Unlike a legislature, however, agencies can’t just issue rules by fiat. They have to propose a rule, which the public can then comment on. After this comment period, the agency must revise the rule before issuing the final version. Rules, like statutes, are legally enforceable, though they can, like statutes, be challenged in court.

Enforcement

Agencies have the power to investigate alleged wrongdoing and issue fines and other punishments. The most familiar of these are federal police agencies—the FBI, ATF, US Marshals, and Secret Service, for example.

Yet they aren’t the only agencies with enforcement powers. The IRS can garnish wages and place liens on property. The Department of Labor can fine businesses that violate employment laws. The Nuclear Regulatory Commission’s enforcement actions can include fines, license modifications, or even revocation of a power plant’s operating license.

Adjudication

In addition to being quasi-legislative–i.e., rulemaking—administrative agencies are quasi-judicial. This means they can hear cases and make rulings. Officials who do this are called administrative law judges (ALJs).

ALJs don’t have the final say on cases, as their decisions can be appealed to a court of law. However, they play a vital role in the administration of justice.

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For decades, Republicans and other conservative thinkers have touted the evils of America’s regulatory regime. Look at the titles of these articles:

• The Tyranny of the Administrative State
• Why the Modern Administrative State Is Inconsistent with the Rule of Law
• How to Defeat the Administrative State

They say it all, don’t they?

One way this “defeat” is being achieved is through a conservative-dominated Supreme Court. Recent cases like West Virginia v. Environmental Protection Agency, Securities and Exchange Commission v. Jarkesy, and the two cases that ended the principle known as Chevron deference have undermined administrative agencies, transferring some of their authority to the court system.

Donald Trump has also tried to limit agencies’ reach, though his efforts have been less successful. He campaigned on the idea of eliminating the Department of Education, but his executive order to do that was blocked in court. The Supreme Court ruled that Trump was allowed to remove heads of agencies that were thought to be independent—i.e., the National Labor Relations Board and the Merit Systems Protection Board—though it made an exception for the Federal Reserve. His effort to fire three board members of the Corporation for Public Broadcasting also failed.

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Recently, I wrote about Trump’s relentless attacks on libraries, including the Institute of Museum and Library Services. On May 1, a federal district court issued a temporary restraining order (TRO) preventing cuts to that agency. The TRO expired on May 29, and on June 6, the same court declined to stop further cuts, writing, “While the Court laments the Executive Branch’s efforts to cut off this lifeline for libraries and museums, plaintiffs have not established a substantial likelihood of success on the merits. The Court must therefore DENY the motion for a preliminary injunction.”

A separate federal court, however, issued a preliminary injunction in another case, ordering the agency to stay open while the case is pending. That decision remains in effect.

Trump might have gone too far with firing the librarian of Congress and the director of the National Portrait Gallery, neither of whom heads an administrative agency per se. The Library of Congress is a part of the legislative branch, not the executive branch, though the president has typically been the one to appoint the librarian.

Likewise, the Smithsonian, of which the National Portrait Gallery is a part, is “governed by a 17-member Board of Regents that appoints a secretary to serve as the institution’s chief executive.” Courts have held that it is not an executive branch agency. The Board of Regents has said that “all personnel decisions” are up to the secretary. Perhaps because of this, the supposedly fired director has kept right on showing up for work.

Though not historically known as a fascinating subject, administrative law has dominated the headlines in recent years. Will it continue to be a battleground for conservative and progressive views? I guess we’ll find out.

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